People v. Timmons

• Decision Date: 25 June 1971
• Docket Number: No. 1,Docket No. 9654,1
• Citation: 192 N.W.2d 75,34 Mich.App. 643
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie TIMMONS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 75

192 N.W.2d 75

34 Mich.App. 643

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie TIMMONS, Defendant-Appellant.

Docket No. 9654.

Court of Appeals of Michigan, Division No. 1.

June 25, 1971.

Rehearing Denied July 29, 1971.

Released for Publication Dec. 8, 1971.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and T. M. BURNS, JJ.

PER CURIAM.

Defendant Willie Timmons, charged with armed robbery (M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797)), was convicted upon a jury verdict and was sentenced to 7 1/2 to 9 years in prison. Defendant appeals as of right raising 4 issues.

First, he contends that the trial court committed reversible error in admitting people's exhibits 1 and 3 because such exhibits were clearly the fruit of an illegal search. Both items (complainant's wallet and complainant's identification) were the subject of a warrantless search and seizure.

Though we find ourselves compelled to agree with defendant that the searches were illegal, we conclude that the trial court's error in admitting the items was harmless. We are convinced beyond a reasonable doubt that this error did not contribute to the conviction, for not only was there positive identification of the defendant by the complainant, but there was also testimony by the officer who conducted a lineup that a positive identification of the defendant had been made. In addition, exhibit 2 (Complainant's credit card) which was removed from an accomplice, William Thomas, at the time of the arrest, provides sufficient circumstantial corroboration of complainant's testimony. We therefore find no reversible error. See Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. den. (1967), 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241); Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; People v. Wavie Williams (1969), 19 Mich.App. 291, 172 N.W.2d 515.

Second, defendant contends that the trial court erred in admitting exhibit 2 (Complainant's credit card) which had been seized incidental to the arrest of the codefendant, William Thomas. We find no merit in this contention however. Accordingly, we see no reason for any discussion thereof.

Third, defendant asserts error flowing from a reference at trial to the fact that he made no statement after his arrest. Defendant cites People v. Hicks (1970), 22 Mich.App. 446, 178 N.W.2d 193, but fails to comprehend the import thereof. In Hicks, supra, the Court of Appeals reversed not on the basis of the direct testimony indicating that defendant had made no statement at the time of arrest, but rather on the basis of the fact that the prosecutor had attempted to emphasize on cross-examination that the defendant had claimed his right against self-incrimination. Such is not the case here, for the issue was only tangentially touched upon and then forever abandoned.

Fourth, defendant asserts that the lack of clarity on one point in the jury instructions necessitated an instruction on lesser included offenses. An examination of the...